Equality as a General Principle of EU Civil Law: The protection of the digital consumer beyond economic interests

This post is part of a special series of posts based on contributions to a conference on ‘The Law between Singularity and Equality’ that took place in Berlin on 31 October/1 November 2025.

What does equality mean in EU civil law? This question pertains to the way in which EU law addresses inequality between businesses and ‘weaker parties’ such as workers or consumers in contractual relationships. It takes on new gravity in digital markets, where new types of economic and societal inequality have emerged that are not, or are insufficiently, captured by the existing rules of EU and national contract laws. As part of the ConsumerID project, one line of enquiry focuses on the development of a general principle of equality in EU civil law, building on Norbert Reich’s work on General Principles of EU Civil Law (Intersentia, 2013).

New forms of inequality have arisen in the relationships between digital services providers and their users, which are not easily captured within the existing frameworks of EU and national contract laws. Two examples can illustrate the problem. First, the business models of online platforms have created, and continue to fuel, a ‘data inequality’ between platforms and their users (see The Economist, 20 February 2020). The income generated by online platforms is mostly derived from labour provided by their users, ie, in the form of content creation on social media platforms; yet it remains with the platform and is not, or is rarely, shared with the users. It is predicted that the inequality between firms and users will increase as ‘data work’ increases in volume, for instance in the form of human input for the development of AI tools. Second, online platforms have powerful positions for determining the terms and conditions under which users may make use of their services. The market for digital services is dominated by a small group of BigTech firms and users have no choice but to accept the terms set by the companies if they wish to make use of their services. In practice, this has given almost free reign to these companies for determining which conditions apply to the sharing and processing of data, as well as the freedom of expression on a social media platform. Even with EU law instruments regulating some of this space—for instance through the General Data Protection Regulation (GDPR) and the Digital Services Act (DSA)—there is still plenty of room for the platforms to maintain general contract terms that restrict users’ autonomy with regard to the use of their data and their freedom of expression. Or in some instances platforms can simply include such terms until a consumer or data protection authority challenges them.

Economic and societal inequalities affecting workers and consumers are, as the past has shown, not easily addressed through contract law. Often the contractual relation is part of a bigger economic or societal structure placing the worker or consumer in a weaker position. Caplovitz’s The Poor Pay More (Free Press, 1967) captured how poverty can result in poor consumers paying more for the same goods and services as others, for instance for consumer credit. In recent years, the works of Piketty and Pistor have analysed how capitalism sustains economic inequality, supported by legal rules and institutions.

The argument put forward as part of the ConsumerID project is that EU contract law can have a role in addressing new forms of inequality arising in digital consumer markets, such as those described above. The focus on contract law implies a reduction of the issue to a narrower framework, as structural inequalities are better addressed through public regulation or tax law; yet the development of a new concept of equality in EU contract law can form an important part of the puzzle.

The starting point for the enquiry can be the idea of ‘general principles of EU civil law’ put forward by Norbert Reich in his 2013 book by that title. Reich defined equality in EU law in two ways. First, it is reflected in the rules of EU primary and secondary law, in particular in the Charter of Fundamental Rights (eg, in Article 21 on non-discrimination and Article 23 on equality between men and women). Second, equality is reflected in the idea of ‘protection of the weaker party’, which Reich regards as a principle of EU civil law. It is connected to the principle of ‘framed autonomy’. This term denotes that while in European contract law the principle of autonomy is leading, as it is in national contract laws, it is circumscribed by legal rules of primary and secondary law aimed at protecting objectives that have a higher or at least equal ranking—such as the protection of weaker parties, or of fair competition.

The development of a general principle of equality in EU civil law can serve to address the protection of consumers as weaker parties in digital markets. It could form the basis, for instance, for introducing protection going beyond economic interests to address shortfalls in the protection of fundamental rights such as data protection and freedom of expression. Also, it could form the basis for developing new ideas on economic value. For content creators, the recognition of ‘use value’ besides ‘exchange value’ could be a justification for seeking to award remuneration for their—currently mostly unpaid—work in the creation of social media posts and videos (see also Mak).

EU law, so it is argued, is the preferred level for action. In comparison to national contract laws, it has the possibility of introducing targeted, EU-wide instruments. Future steps for research can focus on the following issues: the application of contract law beyond economic interests; fundamental rights protection in horizontal relationships; the effects of fragmentation in the use of concepts in EU digital market law (consumer, user, recipient, citizen); redefining consumer ‘vulnerability’ in digital markets. Of course, the Digital Fairness Act (DFA) expected in 2026 can bring some relief too. Seeing that its remit is likely to be limited, however, a new conception of a general principle of equality in EU civil law, rebalancing the interests of BigTech companies and those of their users, seems a promising lead for boosting weaker party protection in European contract law. The quest continues.

Vanessa Mak is a Professor of Civil Law at Leiden University.

This blogpost is part of the project ‘These Shoes Don't Fit! - How can consumer interests be protected when consumer identities are increasingly diffuse?’ (with project number VI.C.211.012) of the research programme Vici SGW which is financed by the Dutch Research Council (NWO).